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Outdoors Q&A: Is It Legal to Refuse a Search?
Q: Over the years, I’ve been asked by officials with the Department of Fish & Game to produce my hunting license, show my game, show my gun and show my shells. However, this past weekend my brother and I, as well as other hunters, were asked at the refuge parking lot to voluntarily submit to a pat-down search and to have our gear thoroughly examined for extra shells beyond the 25-shell limit. I really felt like the pat-down search was a bit much. We were only a few hundred feet from the parking lot, we arrived well before shoot time and we fully complied without any form of resistance. I’m assuming that since we were asked, we were not required to submit to a pat-down search.
The only related regulation I can find is this: “The department may inspect the following: (a) All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles or amphibia may be stored, placed or held for sale or storage.”
Given this, I have three questions: Could I have refused a pat-down search? What would have been the repercussions of refusing? What are the repercussions of having more than 25 shells in the field while in places where there is a shell limit? (Jim I.)
A: According to Northern California District Chief Mike Carion, non-negotiable search of the clothing a person is wearing is limited to situations when an officer believes the person may have a weapon. Outside of that, a clothing search can be conducted only with permission or in conjunction with an arrest.
That being said, hunting equipment and all “containers” are subject to inspection by wardens (Fish & Game Code, sections 1006 and 2012). Failure to allow a search is grounds for arrest.
Many types of hunting gear are designed to hold shotgun shells, game, etc. These items are not technically “clothing” as defined by the law, but are more like hunting equipment, and thus would not be exempt from a search inspection. If the purpose of the search is merely to locate hunting equipment, the officer may ask the person to remove this type of hunting gear so it may be searched. For example, a hunter could be asked to remove a hunting jacket, game bag or maybe even waders if they were designed to hold equipment.
A person may deny consent to an officer who wants to search their clothing, but consenting is a smart choice. If an officer believes that a person may have a firearm or other dangerous weapon and there could be a potential officer safety issue, the individual can still be searched.
So, to answer your questions:
» Can you refuse a pat-down? Yes.
» What are the repercussions for refusal? Although this could raise a “red flag,” which may cause the officer to think you are hiding something and may lead to a poor contact, it is legal to refuse to a consent search.
» What are the repercussions to having more than 25 shells in the field? You could be cited or possibly ejected from the area.
Fish to Friends and Family
Q: Can I give fish away to friends and family? If so, do they need to have a fishing license for me to give it to them? (James M.)
A: Yes, you can give fish away. Though you can take only one daily bag limit per day, you can give that limit away so that you can go fishing another day and not be in violation of the overall possession limit. The recipient of your fish does not need to have a fishing license, but also may not possess more than the legal limit at any time.
Remember one important fact: Though your friends are allowed to possess fish without a license, if they are in a boat or in the field and have access to fishing equipment, this is prima facie evidence they took the fish themselves, so make sure the fish are taken home and you are not out in the field or coming in from fishing when you give your fish to an unlicensed person.
Possession of fish and equipment used to take fish when out in the field or coming back from a fishing trip is evidence that person was fishing, and they may be cited for not having a license (FGC, section 2000).
— Carrie Wilson is a marine biologist with the California Department of Fish & Game. She can be reached at .(JavaScript must be enabled to view this email address).
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» on 01.19.10 @ 10:52 AM
Be careful about refusing a “pat-down search.” If the search is based solely upon your consent, you have the right to refuse, but if the officer has reasonable suspicion to believe you may be armed, the search will be conducted without your consent. If you resist a pat-down search being conducted upon reasonable suspicion, you run the risk of being arrested for resisting an officer in the performance of his duty (148 PC), even if the subsequent search proves you are unarmed. And remember, the officer may ask for your consent even though he/she also has reasonable suspicion to justify an involuntary pat-down search. In cases like these, the officers know the law very well, their lives depend upon it. So be careful when refusing a pat-down search, the consequences of misunderstanding the law can be significant.
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