STATE OF MONTANA, Plaintiff and Respondent, v. JAMES WILLIAM BOYER, Defendant and Appellant.
No. 00-183.
SUPREME COURT OF MONTANA
Decided February 26, 2002.
2002 MT 33 | 308 Mont. 276 | 42 P.3d 771
Argued April 20, 2001. Submitted May 3, 2001.
JUSTICE NELSON dissents and concurs.
JUSTICE TRIEWEILER dissents
For Respondent: Hon. Mike McGrath, Attorney General; Mark W. Mattioli (argued), Assistant Attorney General, Helena; Ed Amestoy, Phillips County Attorney; Dan O‘Brien, Deputy County Attorney, Malta.
JUSTICE REGNIER delivered the Opinion of the Court.
¶1 James William Boyer appeals from an order issued by the Seventeenth Judicial District Court, Phillips County, which denied his motion to suppress evidence. We affirm.
¶2 The sole issue on appeal is whether the District Court erred in denying Boyer‘s motion to suppress.
BACKGROUND
¶3 On Sunday, April 18, 1999, Warden Steve Jones of the Department of Fish, Wildlife and Parks (Department) was patrolling by boat a portion of the Missouri River bordering Phillips County, Montana. Jones observed a boat anchored in the river which appeared unoccupied. Concerned for the prospective passengers’ safety, Jones pulled his boat alongside the anchored boat and observed Boyer lying on the floor. Boyer sat up and told Jones he was just waking up from a nap. Jones inquired into Boyer‘s safety and Boyer stated that he was okay.
¶4 Upon further questioning, Boyer indicated that he had been fishing since Friday and produced his Montana fishing license. Additionally, Boyer disclosed that he had fish in his possession, stored in the boat‘s live well. Jones requested to see his catch. Boyer suggested Jones could inspect the catch later in the evening at a boat launch. Jones rejected this suggestion and Boyer reluctantly removed eight fish from the live well. At that time, the combined possession limit for sauger and walleye was ten fish.
¶5 In order to inspect the fish, Jones tied the boats together and stepped onto the transom, an exterior platform attached to the rear of Boyer‘s boat. From this vantage point, Jones could see that Boyer‘s live well, which was open, contained additional fish in excess of the legal possession limit. Boyer allowed Jones to remove the additional fish. Jones determined that Boyer had nineteen dead sauger and walleye in his possession. Jones confiscated the excess fish and issued Boyer a notice to appear for the possession of unlawfully killed game fish.
¶6 Boyer was convicted in Justice Court of possession of unlawfully killed game fish in violation of
STANDARD OF REVIEW
¶7 In reviewing a district court‘s denial of a motion to suppress evidence, we determine whether the court‘s findings of fact are clearly erroneous and whether the court‘s interpretation and application of the law is correct. State v. Reesman, 2000 MT 243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18.
DISCUSSION
¶8 Did the District Court err in denying Boyer‘s motion to suppress?
¶9 On appeal, Boyer argues that several of the District Court‘s findings constitute reversible error. First, Boyer argues that Jones initiated an investigatory stop on Boyer without the requisite particularized suspicion of wrongdoing. Further, Boyer insists that Jones unlawfully compelled production of his fishing license and catch. Finally, Boyer claims Jones performed an illegal search in stepping onto the back of his boat to inspect the fish and live well. We address each of Boyer‘s contentions below.
A. Jones’ Initial Advance on Boyer‘s Boat
¶10 Boyer contends Jones’ initial advance on his boat constituted an unlawful investigatory stop. Boyer argues that the District Court should have suppressed the inculpatory evidence revealed by Jones’ inspection because Jones admitted having no particularized suspicion that the boat occupants had committed, were committing, or were about to commit an offense. See
¶11 We have previously stated that:
Legal stops can also occur in noncriminal, noninvestigatory contexts. For example nothing prevents a police officer from making a stop to deliver an emergency message, assist a stranded motorist or warn of an impending danger. A police officer can legally stop a vehicle for a bona fide reason which is related to functions within his authority and duties.
Grinde v. State (1991), 249 Mont. 77, 81, 813 P.2d 473, 476, overruled
¶12 On January 25, 2000, the District Court held a hearing on Boyer‘s motion to suppress. At the suppression hearing, Jones testified that an initial concern for the prospective occupants’ safety drew his attention to Boyer‘s boat. From a distance, Boyer‘s boat appeared unoccupied. As Jones did not see anyone in the boat or on the surrounding shoreline, Jones testified that he was concerned that somebody may have “fallen overboard or something of that nature.” Therefore, he inquired into the situation by approaching Boyer‘s boat.
¶13 Clearly, in approaching Boyer‘s boat, Jones acted within his express authority. We would never seek to discourage wardens or other law enforcement officials from assisting persons in potential distress. Thus, the District Court correctly determined that Jones lawfully approached Boyer‘s boat.
B. Request to Produce License and Catch
¶14 Boyer contends that if we conclude Jones’ initial advance on his boat was a lawful “welfare check,” the welfare check and Jones’ corresponding safety concerns ended when Boyer responded that he was okay. In proceeding further, Boyer argues that Jones detained Boyer to request production of his fishing license. Therefore, Boyer states that Jones needed a particularized suspicion of wrongdoing, as required prior to initiating an investigatory stop, to effectuate the detention and request for Boyer‘s fishing license. Further, Boyer asserts that since he evinced an expectation of privacy in his catch by placing the fish in a concealed live well, Jones needed probable cause to inspect Boyer‘s catch. Boyer contends that Jones had neither a particularized suspicion or probable cause. Therefore, Boyer maintains that all of the evidence gathered by Jones following the initial welfare check must be suppressed.
1. The License Request
¶15
(1) Except as provided in
87-2-114(2) , it is unlawful for aperson to whom a license or permit has been issued to fish ... unless the person is carrying the required license, licenses, or permit at the time. (2) It is unlawful to refuse to exhibit a license or permit and the identification used in purchasing a license or permit for inspection to a warden or other officer requesting to see it.
Further,
¶16 Here, Boyer was on a fishing boat containing a visible live well. He admitted to Jones that he had been fishing for three days. Jones had the authority to request production of Boyer‘s fishing license pursuant to
2. The Request to Produce Boyer‘s Catch
¶17 Boyer argues that Jones performed an unlawful warrantless search by requesting production of Boyer‘s catch. The request was unlawful, according to Boyer, because Jones did not have probable cause to believe that Boyer had committed a violation at the time Jones requested production of his catch. Boyer contends that
A warden may search, without a warrant, any tent not used as a residence, any boat, vehicle, box, locker, basket, creel, crate, game bag, or package, or their contents upon probable cause to believe that any fish and game law or department rule for the protection, conservation, or propagation of game, fish, birds, or fur-bearing animals has been violated. [Emphasis added.]
¶18 The State argues that
A warden has the authority to inspect any and all fish, game
and nongame birds, waterfowl, game animals, and fur-bearing animals at reasonable times and at any location other than a residence or dwelling. Upon request therefor, all persons having in their possession any fish, game and nongame birds, waterfowl, game animals, and fur-bearing animals shall exhibit the same and all thereof to the warden for such inspection.
Boyer asserts that we must read this statute in conjunction with the game wardens’ enforcement powers articulated in
¶19 When analyzing search and seizure questions that specially implicate the right of privacy under Montana‘s Constitution, we consider Sections 10 and 11 of Article II of the Montana Constitution. State v. Bassett, 1999 MT 109, ¶ 23, 294 Mont. 327, ¶ 23, 982 P.2d 410, ¶ 23. Article II, Sections 10 and 11 of the Montana Constitution provide:
Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.
Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
¶20 To determine the threshold question of whether there has been an unlawful government intrusion into one‘s privacy, this Court looks to the following factors: (1) whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the state‘s intrusion. Bassett, ¶ 24. Where no reasonable expectation of privacy exists, there is neither a “search” nor a “seizure” within the contemplation of Article II, Sections 10 and 11 of the Montana
¶21 Boyer argues that placing his fish in a closed live well evinced his actual expectation of privacy in his catch which was reasonable. The State offered no evidence at the suppression hearing contradicting Boyer‘s subjective expectation of privacy. However, the State argues that Boyer‘s subjective expectation of privacy is not one which society is willing to recognize as reasonable. We agree for the reasons set forth below.
¶22 Article IX, Section 1(1) of the Montana Constitution provides that “[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” To safeguard Montana‘s wildlife for present and future generations, the Legislature provided for the appointment of game wardens to “enforce the laws of this state and the rules of the [D]epartment with reference to the protection, preservation, and propagation of game and fur-bearing animals, fish, and game birds.”
¶23 With these considerations in mind we now consider Boyer‘s contention that wardens must have probable cause of wrongdoing to request production of an angler‘s concealed catch. Since taking or possessing fish is not illegal per se, simply observing someone catching and keeping fish would not give rise to probable cause of a fish and game violation. Boyer‘s proposition would virtually require wardens or third parties to have personal knowledge of fish and game violations prior to conducting the contemplated inspection. Montana‘s vast geography, the anglers’ somewhat uninhibited freedom of movement, and the remoteness from warrant issuing magistrates and law enforcement entities would severely impede game violation investigations. The inevitable result would be the unnecessary depletion of Montana‘s wildlife and fish which we are all bound to protect and preserve. We decline to impose this burden.
¶24 Our holding today should come as no surprise to outdoor enthusiasts. As alluded above, the Montana Fishing Regulations
¶25 Finally, we consider the nature of the State‘s intrusion in conducting inspections without suspicion. A typical license or game inspection should require no more inquiry than: (1) Have you been fishing today?; (2) Do you have a valid Montana fishing license?; and (3) Do you have any fish in your possession? In fact, Jones asked Boyer these very questions. The stops eliciting answers to these questions maintain close geographical and temporal ties to fishing activities. To the average law abiding angler, this line of questioning consumes little time and creates negligible anxiety, restriction of movement, and inconvenience. Legitimate anglers should experience minimal interference and the non-fishing segment of the population will proceed virtually uninhibited.
¶26 Boyer‘s claim that he had a legitimate expectation of privacy in his catch as he enjoyed the peace and tranquility of the Missouri River reeks of irony as his peaceful and tranquil poaching threatened the river‘s resources for future generations. For the foregoing reasons, we conclude that society is not willing to recognize an angler‘s subjective expectation of privacy in his or her catch as objectively reasonable. As such, we hold that Jones’ request for and inspection of Boyer‘s catch was not a search. Therefore, the probable cause requirement contemplated in
C. Stepping on Boyer‘s Boat
¶27 We now turn to the most important phase of our inquiry. We have already concluded that Jones lawfully approached Boyer‘s boat to conduct a welfare check. To conduct this check, Jones pulled his boat
¶28 Prior to tying the boats together, Jones merely requested production of Boyer‘s license and catch. Jones did not need a particularized suspicion to make such requests. In making the requests, Jones did not seize Boyer by restraining his freedom of movement. See State v. Reynolds (1995), 272 Mont. 46, 49, 899 P.2d 540, 542. However, Jones’ subsequent act of tying the boats together did restrain Boyer‘s freedom of movement. Therefore, Jones initiated an investigative stop at the instant he tied the boats together.
¶29 To stop a person, an officer must have a particularized and objective basis for suspecting the particular person of criminal activity. State v. Farabee, 2000 MT 265, ¶ 14, 302 Mont. 29, ¶ 14, 22 P.3d 175, ¶ 14. In Farabee, ¶ 14, we recognized that for the State to prove the existence of a particularized suspicion, the State must show: (1) objective data from which an experienced police officer can make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity. The Montana Legislature has codified these principles in
¶30 At the suppression hearing, Jones testified that he had a reasonable suspicion that a fishing violation had occurred. Clearly, to Jones, Boyer‘s conduct created suspicion of wrongdoing. Jones testified that requesting production of a fishing license and catch on patrol was routine. He further testified that in his opinion licensed anglers are aware of the statutory requirement to present their catch upon request. Boyer‘s reluctance to present his catch did provide objective data upon which a warden could suspect wrongdoing. We conclude that Boyer‘s actions support a determination of particularized suspicion justifying an investigative stop.
¶32 After Jones initiated the investigative stop, Boyer claims that Jones performed an illegal search when he stepped onto the transom of Boyer‘s boat to inspect the live well. The State argues that Jones’ actions did not constitute a search because Boyer did not have a reasonable expectation of privacy in the transom on his boat. Again, we consider the three privacy factors referenced above to determine whether Jones’ act of stepping on the rear platform of Boyer‘s boat constituted a search.
¶33 Under these circumstances, we believe that the nature of Jones’ intrusion was so minimal as not to violate any alleged privacy interest that Boyer may have had. As noted above,
¶34 We have recently held that a homeowner does not have an objectively reasonable expectation of privacy regarding the use of unposted and unobstructed property leading to the front door of a home, including the porch. State v. Hubbel (1997), 286 Mont. 200, 210, 951 P.2d 971, 977. The transom used by Jones is similar to a porch abutting a house, although certainly a home is more private and protected than a fishing boat on a public waterway.
¶35 We would also point out that the live well was open when Jones made his observations. A live well on a fishing boat would not typically contain anything other than river water and fish. Jones’ actions were no more invasive than a game warden looking into the open canopy of a pickup, or a police officer observing contraband on the floor of an automobile in connection with an investigative stop. They were certainly no more invasive than a game warden stepping on a bumper
¶36 We hold that Boyer had no legitimate expectation of privacy that society is willing to recognize as objectively reasonable in the rear platform on his boat. Consequently, Jones’ act of stepping on the transom did not constitute a search. Therefore, contrary to the dissent‘s behest, we need not indulge in a lengthy discussion of whether Jones had probable cause to step on the transom.
¶37 Once Jones lawfully stepped on the transom, he could see into the open live well. This plain view observation revealed that Boyer possessed additional fish, in excess of his legal limit. Jones’ observation allowed him to remove the excess fish from Boyer‘s live well and issue the unlawfully killed game fish citation. Therefore, the District Court did not err in denying Boyer‘s motion to suppress.
¶38 Attempting to equate this case to an automobile search, Boyer‘s argument is replete with references and analogies to State v. Elison, 2000 MT 323, 302 Mont. 228, 14 P.3d 456. In Elison, after initiating an investigatory stop, the officer requested that the defendant exit his vehicle. After the defendant admitted to stowing marijuana behind a seat, the officer opened the vehicle‘s door, tilted the driver‘s seat forward, and discovered a film canister which he removed and opened. During the search, the officer also observed a paper bindle, a two-inch tube, and a razor blade on the seat and floor board. The defendant filed a motion to suppress the evidence which the district court denied. We concluded that an individual does not surrender a privacy interest in items which the individual takes precaution to conceal from public access simply because the items happen to be in an automobile. Elison, ¶ 51. Since none of the warrantless search exceptions applied to the officer‘s search, we reversed the district court‘s denial of Elison‘s motion to suppress.
¶39 The critical distinction between Elison and the case at bar is the second privacy factor of the three-prong test articulated above. We have defined “search” as the use of some means of gathering evidence which infringes upon a person‘s reasonable expectation of privacy. Elison, ¶ 48. In Elison, we acknowledged that individuals have a reasonable expectation of privacy in the items stowed behind their automobile seats. Elison, ¶ 49. Here, we concluded that an individual does not have an objectively reasonable expectation of privacy in game fish since: he or she has a constitutional duty to maintain and improve a clean and healthful environment; the Legislature enacted
¶40 We further concluded that individuals have no objectively reasonable expectation of privacy in the transom on their boat. It is with this conclusion that the dissent takes us to task and cites a laundry-list of cases for the proposition that boats on public waterways enjoy the same search and seizure protections as automobiles on public highways. Accordingly, Justice Nelson concludes that “individuals boating on Montana‘s public waterways have a reasonable expectation of privacy in their boats and in items stowed therein beyond the purview of the public.” Thus, the dissent emphatically suggests that we have failed to address Boyer‘s legitimate and reasonable expectation of privacy in his boat and its contents.
¶41 We disagree. Here, in an effort to inspect Boyer‘s catch, Jones did nothing more than step onto the transom of Boyer‘s boat. Boyer argues on appeal that this action constituted an unlawful search. The dissent echoes the same argument. Our fundamental disagreement with both Boyer and the dissent focuses on Jones’ decision to step on the transom of the boat. We simply believe that Boyer did not have a legitimate expectation of privacy in the transom on his boat that society is willing to recognize as objectively reasonable. As previously stated, what occurred here was no different than a game warden stepping on the bumper or running board of a pickup to get a better view of a tagged animal. We suspect this occurs on numerous occasions throughout hunting season in Montana without hunters thinking that their rights of privacy have been invaded.
¶42 Since Boyer did not have a privacy interest in the transom on his boat, a search never occurred. Once Jones lawfully occupied the transom on Boyer‘s boat, he could see the live well‘s contents in plain view. Jones did not conduct a search of the boat, look under the seats, remove or rearrange any personal belongings, or even open the top of the live well. By comparison, the actions of the officer in Elison were far more invasive. There, the officer actually opened the door of the vehicle and conducted a search of the interior. The search included tilting the driver‘s seat forward to inspect for contraband. In doing so, the officer found a film canister which he then opened and discovered marijuana. The search proceeded and the officer found a paper bindle located next to the film canister as well as a two-inch tube on the seat and a razor blade on the floor board.
¶43 In our view the facts presented in Elison are clearly and quite properly distinguishable. Boyer‘s right to privacy was not violated and
¶44 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES COTTER and RICE concur.
JUSTICE LEAPHART specially concurring.
¶45 I specially concur. As the Court states, fishing is not a right, it is a privilege granted by state license. The law,
¶46 The dissent posits that if a warden, without any probable cause, looks into a boat or live well, that constitutes a warrantless search. The dissent makes much ado about the fact that Jones, from his sitting position in his boat, could not see into Boyer‘s live well. Is the “plain view” doctrine so rigid that Warden Jones must remain seated; that he not look left or right or behind? If Warden Jones, instead of standing on the transom of Boyer‘s boat, stood on the transom or seat of his own boat and observed the contents of the open well, would we hold that that was a “search” for which there was no probable cause? I, for one, would not. The warden was merely observing that which had been knowingly exposed to the public; that which was in “plain view.”
¶47 If we in effect legally blindfold wardens so that they cannot look into an open live well or the bed of a pick-up truck at a game check point, we will have created a poacher‘s haven where Montana‘s treasured wildlife will eventually go the way of the ill-fated dodo bird.
CHIEF JUSTICE GRAY joins in the specially concurring opinion of JUSTICE LEAPHART.
JUSTICE NELSON dissents and concurs.
¶48 I concur in portions of the majority opinion, as noted below. However, I dissent from the ultimate decision of the Court. Constitutional issues aside, this case can, and should, be decided by applying the three plain and unambiguous statutes that pertain to this case—
¶49 I will first set out those portions of the Court‘s opinion in which I concur and then turn to my disagreement with our decision. Finally, since the majority opinion raises several constitutional issues, I will, of necessity, also address those.
II. Discussion
A. Concurrence:
¶50 I agree with the result of the Court‘s decision as articulated under “A. Jones’ Initial Advance on Boyer‘s Boat.” Clearly, on the facts here, Jones initially approached Boyer‘s boat, not because he believed that the presumed occupant had committed, was committing or was about to commit a criminal offense (see
¶51 I also agree that once Jones‘s “welfare check” was completed, he had the right, without need of any predicate particularized suspicion, to request to see Boyer‘s fishing license and catch. As stated by the majority,
A warden has the authority to inspect any and all fish ... at reasonable times and at any location other than a residence or dwelling. Upon request therefore, all persons having in their possession any fish ... shall exhibit the same and all thereof to the warden for such inspection.
Under this statute, Boyer was obligated to produce his catch on Jones‘s request and Boyer could have been charged with a misdemeanor if he refused. See Title 87, Chapter 1, Part 1, generally and, in particular,
¶52 Turning to the record before us, it is clear that Boyer was cooperative with Jones. Boyer freely admitted he had been fishing; he produced his fishing license when requested to do so; and he stated that he had fish in his possession which were in the closed live well in his boat. When asked to produce the fish, Boyer equivocated, but finally opened the live well and removed a legal number of fish.
¶53 Again, the record demonstrates that, from his position in his boat, Jones could not see into Boyer‘s live well. At this stage of the scenario, because of Boyer‘s hesitancy, Jones suspected that Boyer had too many fish in his possession. Notwithstanding, Jones conceded that he had no probable cause to believe that Boyer was in violation of the law limiting his possession of certain species of fish. And, this concession is important because it establishes that, on the record here, Jones had no legal authority to tie onto or to board Boyer‘s boat and to then engage in what was a warrantless search of the boat and the live well located within it. It is here, and for this reason, that I part company with the Court.
B. Dissent:
1. Boyer‘s Reasonable Expectation of Privacy in His Boat and in the Live Well
¶54 In that part of the Court‘s opinion captioned “2. The Request to Produce Boyer‘s Catch,” the majority states at ¶ 18 that “[t]he precise inquiry, then, is whether Boyer is entitled to a reasonable expectation of privacy in the game fish he possessed.”2 The Court then launches into an extended discussion of constitutional privacy, the constitutional
¶55 The problem here, however, is that the “precise inquiry” is not whether Boyer had a reasonable expectation of privacy in his fish, but, rather, whether he had a reasonable expectation of privacy in his boat and in his live well. While I agree that Jones could request to see Boyer‘s license and catch without predicate particularized suspicion, there is a critical distinction between inspecting the catch and inspecting a container that holds the catch—which is, itself, within the confines of the boat. Indeed, the majority‘s seemingly innocuous restatement of the issue from that actually decided by the trial court enables it to then ignore the record and reach the result sought. Importantly, when the “precise inquiry” is, properly framed—i.e. whether Boyer had a privacy interest in his boat and his live well—the majority‘s analysis falls apart. To that part of the Court‘s opinion I now turn.
¶56 While directly on point, the Court dismisses our decision in State v. Elison, 2000 MT 323, 302 Mont. 228, 14 P.3d 456, on the basis that Boyer had no expectation of privacy in his catch. See ¶ 39. However, as noted, the majority‘s focus on the fish is too narrow. The real focus of Elison is on the boat.
¶57 Elison explains at some length that Montana‘s Constitution, Article II, Sections 10 and 11, confers greater privacy protection than does federal law from warrantless searches of automobiles. Elison, in fact, rejects federal jurisprudence that allows such searches under the Fourth Amendment to the United States Constitution. Elison, ¶¶ 39-51. Elison states that this Court has reaffirmed that “the word ‘automobile’ is not a talisman in whose presence the [warrant requirement] fades away and disappears.” Elison, ¶ 47 (citing State v. Sawyer (1977), 174 Mont. 512, 517, 571 P.2d 1131, 1133). Because an individual has a reasonable privacy interest in areas where items can be stowed out of sight in his automobile; because warrantless searches of automobiles invades this legitimate interest; and even assuming compelling state interests may be implicated, “the State may not invade an individual‘s privacy unless the procedural safeguards attached to the right to be free from unreasonable searches and seizures are met.” Elison, ¶ 53 (citing Hulse v. Department of Justice, 1998 MT 108, ¶ 34, 289 Mont. 1, ¶ 34, 961 P.2d 75, ¶ 34). In making
Because of the legitimate privacy interests implicated and the invasive and generally overbroad nature of the state‘s intrusion on these interests, the search of an automobile requires more than merely the existence of probable cause to believe it contains evidence of a crime. On the foregoing basis, we conclude that, despite any language to the contrary in our previous decisions, there is no “automobile exception” to the search warrant requirement under the Montana Constitution. Rather, as we have consistently held, a warrantless search of an automobile requires the existence of probable cause as well as a generally applicable exception to the warrant requirement such as a plain view search, a search incident to arrest, or exigent circumstances.
Elison, ¶ 54 (emphasis added).
¶58 This statement of law, of course, begs the question: “Is a boat the equivalent of an automobile for purposes of search and seizure?” Montana has not addressed this question directly, but the case law from other jurisdictions provides an affirmative answer. For purposes of search and seizure, boats on public waterways and automobiles on public highways are not subject to different legal principles. See Carroll v. United States (1925), 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (distinguishing between stationary structures and movable vehicles for Fourth Amendment warrant purposes); United States v. Lauchli (7th Cir. 1984), 724 F.2d 1279, 1282 (officer had probable cause and exigent circumstances to search boat without a warrant); United States v. Whitaker (5th Cir. 1979), 592 F.2d 826, 829-30 (automobile exception applies to boats; areas of a boat might have heightened expectations of privacy); United States v. Weinrich (5th Cir. 1978), 586 F.2d 481, 494; Blair v. United States (4th Cir. 1981), 665 F.2d 500, 505 (Fourth Amendment analysis applies to searches of boats); Prochaska v. Marcoux (10th Cir. 1980), 632 F.2d 848, 852 (no Fourth Amendment violation because officer did not board the boat); United States v. Raub (9th Cir. 1980), 637 F.2d 1205, 1208 (warrantless boarding of boat falls within Fourth Amendment); State v. Sullivan (Mo. Ct. App. 1996), 935 S.W.2d 747; Taylor v. State (Fla. Dist. Ct. App. 1978), 355 So.2d 180 (authority to stop boat does not include authority to conduct general search of the boat).
¶59 Thus, boats on public waterways and automobiles on public highways, being equivalent moveable objects or “vehicles” for purposes of applying search and seizure jurisprudence, it follows that under
¶60 Of necessity, that brings us to the part of the majority opinion captioned “C. Stepping on Boyer‘s Boat.”
¶61 A forthright appraisal of the record in this case clearly demonstrates that the only reason Jones tied onto Boyer‘s boat was so that he could board the boat and look into the live well that he could not see into from his own boat and which he suspected contained more fish than those displayed by Boyer. The State‘s brief candidly asserts that “[b]ecause Boyer [sic] was unable to see into the live well from his boat, he [Jones] tied onto Boyer‘s boat and stepped onto the exterior platform attached to the transom of Boyer‘s boat.”
¶62 Moreover, the transcript of Jones‘s answers to questions at the District Court suppression hearing dictates this conclusion:
Q. Then what did he do after the eighth fish?
A. He laid the eighth fish out, and then I wasn‘t able to see or—the balance or whatever was still in the live well, so I drifted back, tied my boat off to his—to his, and stepped out on his—it‘s actually a platform off the rear of his boat.
Q. Yes, and then did you look in the live well yourself?
A. Yes.
Q. And you stepped onto his boat for what purpose again?
A. To count the remainder of the fish and take a look at the remainder of the fish he had in his live well.
Q. Could you see the fish from your position in the boat before you moved?
A. No.
Q. Why couldn‘t you see it:
A. Well I just wasn‘t up at a point—you know, in order to see you have to pretty much be above the live well.
...
Q. When you stepped onto this platform on the back of his boat, your purpose was to look into the live well and to examine the fish he had remaining; is that right?
A. Right.
...
Q. If you hadn‘t seen the remaining fish in the live well, and all you saw was the eight laying on the deck, did you have—do you think you had probable cause at that point to search the live well?
A. Well I‘m trying to remember whether or not he indicated that there were, you know, definitely more fish in there, and I don‘t remember the conversation whether he did or he didn‘t. So you‘re asking if I had known there was additional fish in there?
...
A. Well I don‘t think I did when he laid out the eight and said, can we do this later, and, you know, once we conversed about it and talked, you know he agreed to, you know, let me look in the live well3.
Q. [The defense attorney] asked you several questions several times about particularized suspicion and probable cause, and at several instances through out this encounter with the defendant, and based upon your testimony, what you‘re telling the court is you didn‘t have any probable cause to stop and search his boat until you actually saw he had excess fish; it that right?
A. That‘s correct.
¶63 Again, it is important to recognize that, at the point of his tying onto Boyer‘s boat, Jones conceded that he had no probable cause to believe that Boyer had done anything unlawful. The record
unequivocally demonstrates that Jones boarded Boyer‘s boat—i.e., that he invaded a space in which Boyer had a constitutionally protected privacy interest—without a warrant; without probable cause; and for the sole purposes of inspecting a container within the boat (that he otherwise could not see into without boarding the boat) to gather evidence of what he suspected was a criminal act.¶64 The Court justifies this warrantless invasion in three ways. First the majority categorize Jones‘s seizure as an ‘investigatory stop.’ Second, the Court likens the platform on the transom of Boyer‘s boat to a porch abutting a house. And, third, the majority concludes that, once legally on the transom platform, Jones could see into the open live well with the result that the illegal fish were in ‘plain view.’ If ever there was an example of hoisting oneself to the top of a house of cards by one‘s own bootstraps, this part of the majority opinion fits the bill precisely. In disposing of this analysis, I will address the ‘plain view’ contention first.
¶65 It is clear that if Jones was not legally on Boyer‘s boat in the first place—and he was not—then the plain view doctrine cannot justify the officer‘s observation and seizure of evidence of criminal conduct that was located in a container within the boat and into which Jones could not see except by boarding the boat. In State v. Loh (1996), 275 Mont. 460, 914 P.2d 592, we made clear this point of law:
The essential predicate to any valid warrantless seizure of incriminating evidence [under the plain view doctrine] is that the officer must be lawfully at the place from which he could plainly view the evidence. In other words, his initial entry onto or intrusion into the place where he views the evidence must not have been in violation of the Fourth Amendment or in violation of Article II, Section 11 of Montana‘s Constitution.
Loh, 275 Mont. at 473, 914 P.2d at 600. Further, unlike the majority‘s analogy to an officer stepping onto a running board or bumper of a pickup to get a better look at a kill in back or otherwise in plain view, Jones, according to his testimony, did not know there were any fish in the live well until he looked. In the case at bar, there were no illegal fish in ‘plain view’ until Jones boarded the boat and thereby invaded Boyer‘s constitutional zone of privacy.
¶66 Next, turning to the majority‘s ‘investigatory stop’ and ‘platform-on-the-transom-is-a-porch analysis,’ this entire discussion is nothing more than a red-herring (or, perhaps, more accurately, a red-walleye) designed to provide a convenient, albeit legally disingenuous, vehicle to get Jones from his boat (where he could not see into the live well)
¶67 As has been already aptly demonstrated, Jones boarded Boyer‘s boat for one and only one purpose—to look into the live well so as to confirm his belief that Boyer was in possession of more fish than he was allowed under the law. This activity constituted a constitutional search in the purest sense.
¶68 It is well established that the Fourth Amendment protects people, not places, and that what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582; State v. Bullock (1995), 272 Mont. 361, 375, 901 P.2d 61, 70. Accordingly, when the police invade an area in which a person has an actual expectation of privacy that society is willing to recognize as reasonable, then, in the constitutional sense, a ‘search’ has occurred. See Bullock, 272 Mont. at 384, 901 P.2d at 75-76; Elison, ¶ 48.
¶69 Fundamentally, a ‘search,’ in the constitutional sense, is simply a quest by an officer of the law with an intention to find, which invades a constitutionally protected area. State v. Williams (1969), 153 Mont. 262, 269, 455 P.2d 634, 638. It is ‘some means of gathering evidence which infringes upon a person‘s reasonable expectation of privacy.’ Elison, ¶ 48 (citing Hulse, ¶ 22).
¶70 Moreover, as already noted, because of Montana‘s unique protection of the right of individual privacy afforded by
¶71 On the record here, Jones did not tie onto and board Boyer‘s boat to ‘investigate.’ Rather he agreed, unequivocally, that he boarded the boat to: ‘look into the live well and to examine the fish [Boyer] had remaining.’ And, he conceded that he did so without probable cause to conduct this search.
¶72 As to the ‘platform-on-the-transom-is-a-porch’ part of the majority opinion, the Court cites no authority (and I have found none) for the proposition that a platform on the transom of a boat is anything but what common sense dictates it actually is—part of the boat. The
¶73 Specifically, MERRIAM WEBSTER‘S COLLEGIATE DICTIONARY 1255 (10th ed. 1997) (hereinafter WEBSTER), defines a ‘transom’ (as it relates to a boat) as ‘any of several transverse timbers or beams secured to the sternpost of a boat.’ A ‘platform,’ as pertains here, is defined as a ‘raised horizontal flat surface.’ WEBSTER, at 891. And a ‘porch’ is defined as a ‘covered area adjoining an entrance to a building and usu. having a separate roof.’ WEBSTER, at 906.
¶74 Was the platform on the transom of Boyer‘s boat a ‘covered area adjoining an entrance to a building ... [with] ... a separate roof?’ Not according to the record here.
¶75 Furthermore, the platform on the transom of a boat is no more ‘public’ or less entitled to constitutional protection than any other part of the boat. The majority opinion begs the question: if the boat had not had a platform on the transom, could the game warden have stepped on the out-drive in order to climb onto the boat since that was sticking out from the stern of the boat and was ‘readily accessible to the public?’ If there were no platform on the transom, could Jones have simply climbed over the stern or over the side of Boyer‘s boat, and would that have turned what the majority concludes is a legal search into an illegal one? What if the top of the stern was low to the water versus high to the water? Would the game warden be legally entitled to climb over the former, but not the latter? What if there was a ladder attached to the stern of the boat? Would a ladder also be classified as a ‘porch’ for search and seizure purposes? The absurdity of the majority‘s analogy is apparent.
¶76 In short, the Court‘s ‘platform-on-the-transom-is-a-porch’ analogy is, as Abraham Lincoln is reported to have observed, ‘as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had been starved to death.’ See Beamsley v. Commissioner of Internal Revenue (7th Cir. 1953), 205 F.2d 743, 748. Indeed, it will no doubt come as a shock to Montana boat owners to learn that a device which makes boarding the boat more convenient for those legally entitled or invited, has now been transformed by this Court into a public access. Boat owners might now be well-advised to post ‘no trespassing’ signs on their vessels to protect their privacy interests.
¶77 In summary, as a matter of law, Boyer had the same privacy interest in his boat and in that which was stowed in a place where it could not be seen from outside the boat, as he would have had in his automobile and in items stowed away from the purview of the public
¶78 Here we have Jones, a peace officer, entering onto Boyer‘s boat—in which Boyer had a reasonable privacy interest—specifically to look for evidence of suspected criminal conduct that could not be observed without boarding the boat. Viewed in this light—which is the only context that the record actually supports—we are confronted with a classic search in the constitutional sense. And, that brings us to
2. Section 87-1-506(1)(b), MCA, Applies to Jones‘s Search of Boyer‘s Boat.
¶79 Presumably seeking to balance fishers’
¶80 Rather, the majority hangs its hat on its constitutional, ‘investigatory stop,’ and ‘platform-on-the-transom-is-a-porch’ analyses. Understandably the majority takes this approach, because if it applied
¶81
search, without a warrant, any tent not used as a residence, any boat, vehicle, box, locker, basket, creel, crate, game bag, or package, or their contents upon probable cause to believe that any fish and game law or department rule for the protection, conservation, or propagation of game, fish, birds, or fur-bearing animals has been violated. (emphasis added)
Under this statute, any ‘search’ of the property listed must be based upon probable cause.
¶82 Did Jones have probable cause when he boarded Boyer‘s boat to conduct his search for the suspected over-limit fish? On the record, Jones conceded that he did not. Rather, according to the record Jones stated that he had ‘some suspicion.’
¶83 Assuming, arguendo, that ‘some suspicion’ rises to the level of ‘particularized suspicion‘—and it does not even under the majority‘s authority cited at ¶ 29 of the opinion—it is legally uncontrovertible that
¶84 Accordingly, under the plain and unambiguous language of
3. Constitutional Issues
¶85 That said, there are two other facets of the majority opinion that must be addressed. These two issues are integrally bound up in the majority‘s analysis, in its re-framing of the ‘precise issue’ to focus on Boyer‘s catch, and in its failure to address and apply
¶86 First, by failing to apply
¶87 Arguably, this is not a problem in the case at bar, because, as discussed above, the record is clear that Jones did not even have probable cause to search Boyer‘s boat. Whether Jones could or could not demonstrate a generally applicable exception to the warrant requirement is, thus, largely irrelevant. Without more, we could, and
¶88 That said, I will concede, however, that the majority‘s approach of simply ignoring
¶89 In enacting this statute the Legislature has: (a) eliminated the Constitution‘s warrant requirement and (b) also disposed of the requirement that warrantless searches be supported by both probable cause and a judicially-recognized exception to the warrant requirement. I vehemently disagree that a law can be enacted to accomplish this result.
¶90 In interpreting both the United States Constitution and Montana‘s Constitution, we have frequently reaffirmed a time-worn dogma that is gospel to every first-year law student: warrantless searches and seizures are per se unreasonable subject to only a few carefully drawn exceptions. Katz, 389 U.S. at 357, 88 S.Ct. at 514, 19 L.Ed.2d at 585; Loh, 275 Mont. at 468, 914 P.2d at 57; Elison, ¶ 39.
¶91 These exceptions are, fortunately, few and have been developed over decades by the courts. In Montana (and concomitantly under federal jurisprudence, although the federal counter-part cases are not cited) these exceptions include: a search incident to a lawful arrest, State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1208; evidence in plain view, (though listed as an ‘exception’ there really is no constitutional search or seizure where the doctrine applies), Loh, 275 Mont. at 468, 914 P.2d at 597; evidence discovered from a protective frisk during a stop based on reasonable suspicion, State v. Dawson (1999), 295 Mont. 212, 219, 983 P.2d 916, 921; evidence discovered during hot pursuit, State v. Dow (1992), 256 Mont. 126, 132, 844 P.2d 780, 784; and exigent circumstances that show evidence will disappear if not seized without a warrant, State v. Wakeford, 1998 MT 16, ¶¶ 24-32, 287 Mont. 220, ¶¶ 24-32, 953 P.2d 1065, ¶¶ 24-32. Federal jurisprudence also allows for an ‘automobile exception‘—see Carroll, 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. 543 and its progeny—but, as already noted, Montana has done away with this exception to the warrant requirement by reason of the greater protections afforded under
¶92 Each of these ‘carefully drawn’ exceptions typically involves
¶93 In the case at bar, where fish and game are involved, the Legislature has, by statute, selectively authorized a class of searches that, at one and the same time, violates the Constitution and creates a class of peace officers that do not have to follow the search and seizure strictures that bind other law enforcement officers. The plain language of
¶94 If the Legislature can do this in fish and game cases, then, it follows I suppose, that all sorts of other exceptions to the warrant requirement can be created simply by legislative fiat. Why not statutorily authorize automobile searches based merely on probable cause? Elison should not stand in the way if the Legislature chooses to delete the ‘generally applicable exception’ requirement which this Court imposed for warrantless searches in such cases. Why not statutorily authorize seizure of a person‘s medical records based simply on probable cause? Who needs a warrant if the Legislature decides otherwise? I cannot agree that the Legislature has this power.
¶95 It is a fundamental—and, perhaps the most fundamental—principle of constitutional law that a legislative body cannot abrogate constitutional rights by the simple expedient of enacting a law or statute. Marbury v. Madison (1803), 5 U.S. 137, 176-78, 2 L.Ed. 60 (the United States Constitution is ‘the basis on which the whole American fabric has been erected’ and is ‘superior to any ordinary act of the [L]egislature‘); State ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 435, 214 P.2d 747, 758 (‘Whenever the will of the [L]egislature, declared in its statutes, stands in opposition to the will of the people, declared in the [C]onstitution, the judges ought to be governed by the [C]onstitution rather than by the statutes‘); Hurtado v. California (1884), 110 U.S. 516, 535, 4 S.Ct. 111, 120, 28 L.Ed. 232 (‘Due process of law ... refers to that law of the land which derives its authority from the legislative powers conferred upon [C]ongress by the [C]onstitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law.‘); Northwestern Mut. Life Ins. Co. v. Lewis & Clarke County (1903), 28 Mont. 484, 496-97, 72 P. 982, 984-6 (Constitution is the fundamental law).
¶96 As noted above, warrantless searches are per se unreasonable and, to be otherwise justified, must be based on probable cause and a carefully drawn exception. Katz, 389 U.S. at 357, 88 S.Ct. at 514, 19 L.Ed.2d at 585; Elison, ¶ 54. One without the other is patently unconstitutional. And,
¶97 That is not to say that the Legislature might not craft a statute that is in accord with the requirements of
¶98 In Elison, we departed from federal law and held that Montana has no general ‘automobile exception’ to the warrant requirement because our state constitution affords greater privacy rights than the federal constitution. Elison, ¶¶ 46-51. We held that specific exigent circumstances must be shown because exigency is not automatically inherent in the fact that evidence is in a vehicle. The standard in fish and game search cases should be no less. Indeed, it cannot be. To paraphrase, ‘the word ‘boat’ is not a talisman in whose presence the ... [warrant requirement] fades away and disappears.’ Elison, ¶ 47.
¶99 Finally, I must address the majority‘s reliance on
¶100 Nor do I reject the notion that the Constitutional guarantee of a clean and healthful environment may be implicated in search and seizure cases. In fact, in Armstrong v. State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364, we observed that Montana‘s Constitution was drafted as a compact of overlapping and redundant rights and guarantees. Armstrong, ¶ 71.
¶101 Nonetheless, no constitutional guarantee is absolute. See Bozeman Daily Chronicle v. City of Bozeman Police Dept. (1993), 260 Mont. 218, 224, 859 P.2d 435, 439 (balancing constitutional right of public to know with individual‘s constitutional right to privacy). Competing constitutional rights must sometimes, of necessity, be balanced one against the other. At least under the facts presented in the case at bar, where the fundamental rights of individual privacy and freedom from unreasonable searches and seizures must be balanced against the right to a clean and healthful environment, I would hold that the latter may not trump the former. Individual privacy is simply too precious and fragile a constitutional right to be sacrificed on the altar of cases such as the one at issue here.
¶102 In reaching this conclusion, however, I reiterate the view expressed in my concurrence in Associated Press Inc. v. Montana Dept. of Revenue, 2000 MT 160, 300 Mont. 233, 4 P.3d 5, that the right of privacy protected under
Conclusion
¶103 Based on the plain language of
¶104 Except to the extent to which I concur as indicated above, I dissent.
JUSTICE TRIEWEILER dissents.
¶105 I concur with all of Justice Nelson‘s dissent except ¶¶ 52-54 which discuss balancing the constitutional right of privacy with the constitutional right to a clean and healthful environment.
¶106 I do not believe that the right to a clean and healthful environment was implicated by the record in this case. Neither was it raised as an issue raised in the District Court. Nor did it serve as any basis for the District Court‘s opinion. Finally, I doubt that I would achieve the same balance if it was an issue.
¶107 The State of Montana interjected the environmental mandate of
¶108 The majority cites to
¶109 Boyer was charged with catching more than his limit of Sauger or Walleye. If Walleye, the species is not native to Montana and there is no reliable information regarding the time and place of the first
¶110 If this case involved fish habitat, it would be a different matter. However, it merely involves violation of an arbitrary limit set on how many Walleye (a non-native species) can be taken from the river. To suggest that the constitutional right to a clean and healthful environment is implicated without the benefit of any district court argument or factual record will ultimately denigrate respect for this court‘s future enforcement of the vital protection provided in our Constitution by
¶111 For these reasons, I concur with all of Justice Nelson‘s dissent to the majority opinion other than his discussion which balances the right to a clean and healthful environment with the right of privacy.