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9/29/2014
Ninth Circuit Outlaws Random Motorist Searches Over Fish
Game wardens cannot conduct suspicionless traffic stops looking for bootleg fish, Ninth Circuit US Court of Appeals rules.

Tarabochia brothers
Fishermen may not be randomly stopped while driving and searched by game wardens, the US Court of Appeals for the Ninth Circuit ruled earlier this month. Since 2000, brothers Matthew and Alex Tarabochia have been targeted by the Washington Department of Fish and Wildlife.

Fish and Wildlife Captain Michael Cenci and his subordinates have followed the Tarabochias, detained them without cause, confronted them on their fishing boat and threatened them on several occasions with various criminal charges. In 2006, the brothers made a formal complaint to the local prosecutor who invited Cenci to discuss the issue in a meeting. Before it began, Cenci tried to frisk Joseph Tarabochia, which the prosecutor immediately stopped saying Cenci's behavior was "outrageous."

This set the stage for a March 23, 2007 confrontation when the brothers were carrying a load of recently caught salmon in their pickup truck on a state highway. Cenci stopped the truck with no means of knowing whether the salmon had been taken in violation of any law.

Four Fish and Wildlife officers were present for the stop, but the brothers refused to get out of the truck until sheriff's deputies arrived twelve minutes later. Cenci arrested the Tarabochias as soon as they opened the door.

Upon inspection, no violations were identified, but the brothers were charged with "avoiding a wildlife field inspection." A state court dismissed the charge since the stop was contrary to state law. At this point, the Tarabochias were fed up and decided to file a federal lawsuit over the harassment.

The three-judge Ninth Circuit panel evaluated whether the Fish and Wildlife employees' conduct amounted to a clearly established constitutional violation. The game wardens argue that commercial fishermen are at all times subject to administrative inspection of private property based on their profession. They cited a state law allowing a Fish and Wildlife officer to stop someone who was fishing to inspect licenses and permits, a contention the appellate court rejected out of hand.

"Assuming, arguendo, that one could be 'engaged in fishing' while driving on a highway with salmon, given the statute's lack of definition and failure explicitly to authorize the stop and search of an automobile, a commercial fisher is unlikely to be aware that this provision could subject him or her to a stop and search while engaging in this conduct," Judge Michael Daly Hawkins wrote.

Since the game wardens had no authorization under state law, the court found the stop and search was Fourth Amendment violation. A similar case involving the Oregon Department of Fish and Wildlife from 1983 proved that the law on the matter had been clearly established.

"Such suspicionless automobile searches and seizures of commercial fishers, absent express statutory authorization, subject them to unfettered governmental intrusion -- the principal evil against which the Fourth Amendment protects," Judge Hawkins concluded.

The court concluded that the Fish and Wildlife officers could be held liable for their actions during the March 23, 2007 stop, but claims about earlier stops were dismissed.

A copy of the decision is available in a 150k PDF file at the source link below.

Source: PDF File Tarabochia v. Adkins (US Court of Appeals, Ninth Circuit, 9/9/2014)



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