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Testing the waters on boat searches
by Elizabeth Stawicki, Minnesota Public Radio
March 10, 2003

The Minnesota Supreme Court heard arguments Monday on a case that pits the state's right to regulate fish and game against an individual's right to privacy. An assistant county attorney asked Minnesota Supreme Court justices to throw out a lower court ruling that bars conservation officers from searching boats without probable cause. But an angler argued such inspections violate constitutional protections against illegal searches.

St. Paul, Minn. — John Colosimo of Virginia, Minnesota, touched off a legal battle when he refused to allow a conservation officer to search his boat in northern Minnesota. The boat was between two lakes that both had slot limits. The DNR officer wanted to check whether Colosimo had taken an illegal number of fish. Colosimo, who's also an attorney, refused because the officer lacked probable cause to suspect he had committed a crime.

Nevertheless, a St. Louis County judge found him guilty of refusing the inspection. The Court of Appeals disagreed, and ruled last July that boaters have a reasonable expectation of privacy just as anglers in fish houses have an expectation of privacy.

Jeff Vlatkovich, an assistant St. Louis County attorney, said the only way DNR officers can catch violators on boats is by inspecting their boats.

"Even if they do see someone catching a fish, it's very difficult to tell the species of fish. And it's certainly beyond human possibility to know whether that fish falls outside of the slot limit," Vlatkovich argued.

But Justice James Gilbert asked Vlatkovich how he'd get around probable cause requirements in Minnesota statutes.

"The Legislature said that the game officers cannot check for game unless they have probable cause to believe a criminal violation has occurred. That's right in the statute. That governs the DNR's activity," said Gilbert.

Vlatkovich said different statutes regulate different activity. He also said traditional safeguards against illegal searches are impractical in pursuing fish and game violators. He said unlike DWI cases where a person may show signs of driving drunk, there's no way for officers to determine whether anglers are breaking the law other than by a limited search.

"I'm not talking about going into glove compartments. I'm not talking about tearing apart luggage. Only where we expect to see fish kept -- in live wells and coolers," said Vlatkovich. "People need to put those fish when they're transporting them on ice. We don't expect to find them in their suitcase. It would be unreasonable to expect that."

But Colosimo told justices it's unreasonable for conservation officers to search without probable cause of a crime.

"I support game and fish laws. I absolutely abhor those who violate those laws in any significant way. This is not about that. This is about individual rights," said Colosimo. "It's about turning over 40 years of case law on its head in terms of search and seizure under the Fourth Amendment."

Colosimo argued that officers should not have greater authority to search for fish than for illicit drugs. But Chief Justice Kathleen Blatz questioned that comparison.

"For every person smuggling drugs you may be literally bothering hundreds of people who have nothing to do with drugs. Where in the fishing and game area, you have a license that's very proscribed from the size of the fish, the number of fish. Does it not make a mockery of these laws to say they can't be enforced?" Blatz asked.

Colosimo conceded that when an angler is on the water, he or she should not have the same expectation of privacy. But he questioned how individuals will know where the privacy line begins.

"What about the traveling public who also ... have fish on board. How far does this go? What is the extent of that?" Colosimo asked. "Regardless of how remote in time the activity had been -- does the state have at any time to make that stop?"

The court took the case under advisement and will likely rule before summer.

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