Oklahoma Game Wardens, Super Law Enforcement, Super Jurisdictional Power
Game Wardens are Law Enforcement Officers; they have super search powers, are enabled with super jurisdictional powers, for the purpose of enforcing numerous and complicated hunting and fishing laws, actively seek out violators by using operation game thief. Please read my article:
5 THINGS YOU
NEED TO KNOW ABOUT: GAME WARDENS
Oklahomans need to know, that there are more than 1000 sections of law in the Oklahoma Wildlife Conservation Code, starting at 29 O.S. section 1-101 and ending at section 1002. The 2016-2017 Hunting Guide, regulations, has 51 pages; and, the Fishing guide, has 31 pages. The State of Oklahoma regulates the hunting, taking, trapping, pursuing of all animals, excluding plants and fossils, see section2-101.1. That is right, Oklahoma law provides that all wildlife animals are under the protection and control of the state for purposes of setting bag limits and seasons, section 2-101. This means that Oklahoma law regulates when, who, and how wild animals may be “taken.” Whether hunting, trapping, or fishing, the State Legislature writes the law. The Oklahoma Wildlife Conservation Commission publishes regulations to clarify the law; and game wardens are charged and empowered to enforce the rules of the Commission and the Legislature. See section 2-116.1
Below, are 5 things every Oklahoma hunter or angler needs to know about Game Wardens.
1. Game Wardens Are the Police
Hunters and anglers, this is serious stuff. Game wardens are not like police, they are police. By statute, game wardens are licensed Oklahoma peace officers. They are arguably some of the most powerful police in Oklahoma. In addition, the feds, specifically the U.S. Department of the Interior and the U.S. Department of Commerce, commission and deputize Oklahoma game wardens with power to enforce federal fisheries and wildlife laws in Oklahoma.
Game wardens have full police power to inspect, search, seize, and/or arrest. Note, this police power is not simply for hunting or fishing violations. Game wardens possess the full power to arrest for any violations of the law, hunting related or not. This police power of game wardens is stated at 29 O.S. Section 3-201; game wardens enforce all other laws of this state, make arrests for conservation violations and non-conservation related crimes. So understand, when you are dealing with a game warden, you are dealing with a state police officer who is also deputized by the United States Fish and Wildlife Service to enforce Federal Wildlife Conservation Laws.
2. Game Wardens: Super Search Powers?
Now, imagine the following humorous or not so humorous scenario with campers sitting around a campfire playing cards, when a game warden walks up from the darkness, into the light.
Camper: “You want to search my what?”
Game Warden: “Your cooler, truck, tent-trailer, toolbox, and while I’m at it, that Altoids container on your dashboard.” I think you boys were spotlighting some deer. Aha! I see you have a flashlight. And I see, you have a .22 leaning against the tree.
Camper: “What about our rights to privacy?!”
Game Warden: Laughter, I believe you might have some deer meat in the cooler and horns in the tent. So, open it up.
We are all familiar with our constitutionally guaranteed rights contained in the Bill of Rights against unreasonable searches and seizures. Those hallowed words are memorialized in the 4th Amendment to the U.S. Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
However, what do these words mean when you are confronted by a game warden? What are their police powers to search you or your property? Does the 4th Amendment have any meaning anymore?
Exceptions Swallowed the Rule
For many lovers of liberty, the rights guaranteed by the 4th Amendment have been largely chipped away and provide little real protection in real-life scenarios. This has been done by courts creating legal exceptions to the 4th Amendment so broad as to render the 4th Amendment prohibition against unreasonable searches and seizures to be meaningless. Please see Luman v State, 629 P.2d 1275 and Hunsucker v. State 475 P.2d 618, where the sheriff relied on the open field doctrine/exception to the 4th Amendment, to allow his men to search private property, farmland, away from farm buildings and residences for marijuana growing among the corn.
The game warden, using the open field doctrine, could upon reasonable suspicion, conduct investigative activities, search without a warrant, as long as the search and seizure activities were outside the curtilage, residence and buildings, immediately close to the home.
The game warden could see a light or hear a shot, believe that the shot was a poacher illegally shooting deer at night, climb the fence and start investigating the private property where the warden heard the shot. Bingo, no warrant needed for the warden to start searching private property without a warrant.
The Deputy General Counsel of the Oklahoma Bureau of Narcotics drafted an article instructing Oklahoma Game Wardens on how get around the 4th Amendment and maximize the exceptions to the laws of search and seizure in Oklahoma. Here it is reproduced in its entirety.
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 tips.
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 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! !
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 Miranda.
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
3. Super Jurisdiction
Just as deer and other wild animals cross city and county lines, so does the jurisdiction of Oklahoma game wardens. Although game wardens, in Oklahoma, may have a home base of operations as designated by the Oklahoma Department of Wildlife Conservation, their jurisdiction according to Section 3-201 of Title 29, is statewide. This means that an Oklahoma game warden’s jurisdiction extends to every corner of the state where wildlife can be found: from the bottom of a riverbed, to the skies where fowl fly, and all land spanning Oklahoma’s vast borders.
This obviously applies to public property, but even private property falls within a game warden’s jurisdiction. Remember, we discussed the open field doctrine allowing the sheriff to enter farmland. Oklahoma law authorizes game wardens to arrest without a warrant, a person for any wildlife violation of which the arresting game warden has visual or electronic perception including perception by aircraft, radio, or night vision equipment in order to enforce laws relating to game and wildlife laws, 29 O.S. section 3-205.3. The open field doctrine would allow the warden to enter private property, without a warrant, upon reasonable suspicion to investigate.
Further, a game warden’s subject-matter jurisdiction is just as wide as their geographical jurisdiction. Not only do they have jurisdiction over all criminal activity related to wildlife, they are also one of the primary enforcement officers for all Oklahoma boating laws. Game wardens may not only inspect, search, or seize boats used for fishing, but also any watercraft—from kayaks to party boats. Section 3-201 of Title 29 Oklahoma Statutes, authorizes an Oklahoma game warden to stop any vessel and if the operator refuses to stop, it is a misdemeanor. This authority includes inspecting all water safety equipment, even if the person is not hunting or fishing.
4. Hunting and Fishing Laws are numerous and Complicated
Hunting and fishing regulations are found at the wildlife conservation website, the hunting and fishing regulations vary from lake to lake and from hunting area to hunting area statewide: https://www.wildlifedepartment.com/sites/default/files/center1617.pdf.
The regulations and laws are written and passed to serve environmental, political, conservation, and/or financial interests of different groups. The laws are difficult for the sportsman to understand and follow; however, ignorance of the law is no legal excuse. Thus, even the pure of heart may unwittingly violate the law, and the game wardens are there to enforce the rules and collect the fines.
Here are just a few of the hundreds of arbitrary hunting and fishing regulations under Oklahoma law, all of which you can be criminally charged with for violating:
Ø It is illegal to move a deer you shot before tagging it
Ø The only legal firearm that can be used to hunt Turkeys is a shotgun. However, it is legal to hunt turkeys with a legal rifle, shotgun, or handgun in the fall season
Ø It is illegal to use dogs to hunt deer, but dogs may be used to hunt migratory birds
Ø Electronic bird calls may not be used to hunt turkeys or migratory birds
Ø It is illegal to hunt deer on a public roadway
Ø Felons may not legally possess firearms to hunt with, this includes black powder and air rifles:
1) Antique or curios manufactured before 1899 are prohibited for felons; and
2) Any replica of an antique or curio firearm manufactured before 1899, is prohibited for use by a felon
Ø Arrow restrictions for turkey and all game animals other than squirrels must meet statutory requirements. Spears are not legal to hunt deer.
5. Game Wardens Actively Seek Out Violators
Operation Game Thief: They are watching.
Oklahoma Game wardens in cooperation with Texas Game Wardens conducted an interview of a Texas poaching suspect regarding a large white-tailed buck that had been seen regularly in northwestern Grayson County, Texas. The suspect lives less than a mile from where images of the huge deer had been captured on a game camera. Apparently, this individual was in possession of a set of antlers that closely resembled the famed buck, although he claimed to have killed the deer in southern Oklahoma. During the interview, the suspect initially denied any wrongdoing, insisting that he killed the deer on public hunting land in Marshall County, Oklahoma. Once the wardens executed a cell phone search warrant they had obtained before the interview, the suspect changed his story. He admitted to shooting the deer off a public road on property he did not have permission to hunt, did not have a hunting license and killed the big buck with a rifle in a county that allows use of archery equipment only. The deer, a 25 ½-inch wide, 19-point buck with a gross Boone & Crockett score in excess of 200, was seized. Numerous cases and civil restitution are pending. Investigations into additional offenses in Texas and Oklahoma are ongoing.
As another example, Lincoln County, Oklahoma, Game Wardens used a trail camera to catch two men illegally shooting a deer from their vehicle while on a public road.
The Oklahoma Department of Wildlife Conservation and its game wardens actively look for and try to ensnare violators. The Department goes to great lengths to catch hunters and anglers in the act, even going so far as to set up “sting operations”. Channel 9, News9.com, reported that game wardens commonly use a modified deer decoy that uses realistic movements to lure hunters to take a shot. When hunters take a shot at the decoy, they are arrested, and are charged with violations, including hunting deer in closed season, hunting deer at night, hunting from a public roadway, and discharging a firearm from a public road. Local game wardens routinely issue press releases and cooperate with media to write stories about mechanical deer decoys being used to “sting” deer hunters, poachers and kids into taking an illegal shot at an easy to hit mechanical deer and forcing the shooters into paying the price. http://www.news9.com/story/30486134/oklahoma-game-wardens-swamped-with-poaching-cases.
According to game warden press releases, many of the violations they write citations and warnings for are a direct result of tips received through Operation Game Thief, Oklahoma has an: Operation Game Thief, Cash Rewards! – 1-800-522-8039 between 8 a.m. and 4:30 p.m. Oklahoma advertises on the Department of Wildlife Conservation Website:
DO YOU CARE ABOUT WILDLIFE?
OPERATION GAME THIEF (OGT) is a program of the Oklahoma Department of Wildlife Conservation designed specifically to stop illegal killing of the fish and game which belong to YOU, whether you’re a sportsman or not. It’s a big problem with no simple solution. Help from the public sportsmen, makes a difference.
So, even when a game warden is not directly watching violators, their eyes are everywhere with the help of public citizens. When a violation occurs that they don’t witness personally, they may still gain the necessary information to locate and cite hunters and anglers.
Getting caught up in the legal system could cost you thousands. Why take the risk? Adding Hunter Shield to your U.S. Law Shield membership will provide you peace-of-mind at home and on the hunt. Get covered NOW!
♦ 24/7/365 Emergency access to independent program attorneys experienced in wildlife laws
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♦ Educational materials and events designed to keep hunters and anglers legal
♦ A legal defense program you can depend on
A U.S. Law Shield membership with Hunter Shield protection includes the following:
YOU PAY ZERO ATTORNEYS’ FEES!
♦ Non-emergency access to attorneys experienced in wildlife law to answer your questions
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DON’T GET CAUGHT WITHOUT IT!
The current (45) IWVC member states are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Non-Member States. These (5) states, as of August 2015, are not members of the IWVC: Delaware, Hawaii, Massachusetts, Nebraska, and New Jersey. Presumably the District of Columbia is not a member.
The Interstate Wildlife Violator Compact is an agreement that recognizes suspension of hunting, fishing, and trapping licenses in member states. This means that illegal activities in one state can affect a person’s hunting or fishing privileges in all participating states. Any person whose license privileges or rights are suspended in a member state may also be suspended in Oklahoma. If a person’s hunting, fishing, or trapping rights are suspended in Oklahoma, they may be suspended in member states as well. This cooperative interstate effort will enhance the Wildlife Department’s ability to protect and manage our wildlife resources.
The Interstate Wildlife Violator Compact also establishes a process whereby wildlife law violations by a non-resident from a member state are handled as if the person were a resident, meaning they can be served a ticket rather than being arrested, booked, and bonded. This process is a convenience for hunters, fishermen, and trappers of member states, and increases efficiency of Game Wardens by allowing more time for enforcement duties rather than violator processing procedures.
Oklahoma honors all similar wildlife violation suspensions from other member states. This would include Failure to Appear in court violations. One of the benefits to sportsman who violate wildlife laws is if they are from a member state game warden can write them a simple citation instead of taking them to jail and having them post a cash bond. If a non-resident sportsman is issued a wildlife citation fails to comply with the citation or appear in court, the Wildlife Department will notify their home state of a Failure to Comply. The home state will then suspend that person’s resident hunting or fishing license. Once the sportsman complies with the Oklahoma violation, their home state will be notified and their resident license will be reinstated.