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Supreme Court OK's boat searches
by Elizabeth Stawicki, Minnesota Public Radio
September 25, 2003

A divided Minnesota Supreme Court ruled game wardens may inspect fishing boats without probable cause that an angler is violating fishing regulations. However, a dissenting justice said the ruling opens the door for warrantless searches by any police officer on the mere suspicion that the individual is, has, or will hunt or fish.

St. Paul, Minn. — Writing for the majority, Justice James Gilbert said fishing is largely a recreational privilege that anglers choose to engage in knowing the regulations. And the court's decision merely acknowledges that it's unreasonable for anglers to have an expectation of privacy in all parts of an open boat used to store and transport fish. The ruling overturns a lower court decision that found such inspections violate constitutional protections against illegal searches.

Minnesota Department of Natural Resources enforcement chief, Col. Mike Hamm called the Minnesota called the ruling a victory for the fishing resource. He said during the period when the court had barred game wardens from inspecting boats without cause, anglers refused to allow officers to check their catch, particularly on lakes such as Mille Lacs where fishing restrictions are in force.

"When we'd start moving into some of the lakes that are fisheries have begun management for the good of the population and that's where we were running into folks that'd say, 'you know, you've had a chance to take a look at my fishing license and thank you very much, I'm not going to show you what my catch is," Hamm said.

The decision stems from the case of angler and northern Minnesota attorney John Colosimo. On a fishing trip at Kettle Falls near the Canadian border, Colosimo encountered a conservation officer while moving his boat between portages. He told the officer he had been fishing on Rainy Lake and was transporting his catch. But when the officer asked to inspect the catch, Colosimo refused. The officer issued him a citation carrying a fine of $137.

Colosimo did not immediately return phone calls. But when he argued his case before the Minnesota Supreme Court last March he told justices that the case was not about circumventing the law.

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

Writing in dissent, Justice Alan Page said the majority wrongly forces individuals to choose between waiving their constitutional right to be free from unreasonable searches or engaging in the privilege of hunting, fishing, trapping or possessing wildlife. Page reminded the court it struck down sobriety checkpoints because suspicionless stops were unconstitutional under the Minnesota constitution. He said the boating decision implicitly concludes that the state's interest in protecting its wildlife resource is more important than in protecting human life by deterring drunk driving.

William Mitchell Law Professor Peter Erlinder said up until this ruling, the Minnesota Supreme Court has been quite protective of 4th amendment privacy rights. He said the opinion appears to suggest that if the object of a government search is important enough, search and seizure protections don't apply.

"Typically when government acts they need probable cause or at least reasonable articulable suspicion. But this seems to indicate that we can create exceptions to that general rule. And if exceptions can be created for game enforcement principles, we could certainly use it in other areas as well," said Erlinder.

A year ago the same court ruled conservation officers were NOT allowed to search ice fishing houses without probable cause. But Gilbert said the minimal intrusion in a boat is markedly less when compared to the search of a private, home-like fish house.

Justice Paul Anderson wrote separately that the court should leave to another day, the right, if any, an officer has to inspect MORE than open sections of a fisherman's boat. Justice Sam Hanson took no part in the decision.

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